Wednesday, Oct. 29, 2008

Judge asked to drop AVX filing

Attorney asks for dismissal

The lawyer representing Myrtle Beach residents in an environmental contamination lawsuit against AVX Corp. has asked a judge to dismiss a court filing by the manufacturer that experts say is meant solely to intimidate property owners.

AVX, the source of toxic groundwater contamination in a 10-block Myrtle Beach neighborhood, asked a federal judge in court filings last week to force residents of that neighborhood to help pay for testing and cleanup costs that could top millions of dollars.

Surfside Beach lawyer Gene Connell said home owners near AVX's headquarters on 17th Avenue South had nothing to do with the company's contamination and the manufacturer's request should be dismissed.

No hearing has been scheduled on either request.

Groundwater in the neighborhood is contaminated with high levels of trichloroethylene, a degreaser AVX used for nearly 30 years. Trichloroethylene, or TCE, has been linked with cancer and other health problems.

Connell called AVX's court filing "an attempt to chill the response" of property owners.

"It's an aggressive approach to argue that residents need to help AVX clean it up," Connell said. "No judge would hold those residents responsible."

Kevin Dunlap, a Spartanburg lawyer who filed the request for AVX, did not return telephone calls.

Kevin McAllister, executive director of the SLAPP Resource Center in Denver, said AVX's legal strategy might be allowed under federal environmental laws but "the effect of such a suit is to intimidate people."

SLAPP is an acronym for Strategic Lawsuit Against Public Participation, which is a strategy some corporations use to silence critics and burden them with legal costs.

The goal of such lawsuits is not to win in court, but to scare off critics. The resource center helps people who are victims of such lawsuits.

Jeff Ruch, executive director of Washington, D.C.-based Public Employees for Environmental Responsibility, said the AVX filing "is a cousin to a SLAPP lawsuit."

"More than being intimidated, they [residents] are being sued personally," Ruch said. "That can affect their ability to get loans, refinance their homes and do any number of things. It can be quite an effective tactic."

Ruch, whose nonprofit group is an alliance of environmental scientists and other professionals, said state officials should intervene on residents' behalf.

State regulators "have an awful lot of leverage over the polluter," Ruch said.

It is not clear what, if any, action the S.C. Department of Health and Environmental Control would take. DHEC spokesman Thom Berry said he has never seen a case where a polluter wanted compensation from residents.

"We were as surprised as everyone else with their [AVX's] action," Berry said. "In my 25 years with DHEC, I can't remember a time when a responsible party sought to possibly recover costs from those affected by the contamination unless there was documented evidence that those individuals were involved."

AVX made that request in a proposed amended complaint it filed in federal court. AVX, in that court filing, wants to include the residents in another lawsuit the manufacturer has with Horry Land Co., which owns contaminated land across the street from AVX's headquarters.

In the proposed complaint, AVX asks a judge to hold Horry Land and the residents responsible for attorney's fees, expert fees, the costs of conducting environmental investigations and "containment, removal or mitigation of the contamination at the properties."

AVX also wants Horry Land and residents to pay interest on those debts "at the maximum rate allowable by law."

Connell said about 20 residents have joined the class-action lawsuit he filed against AVX, and another 100 have expressed interest in joining.

Connell originally filed the lawsuit in state court, but AVX had it moved to federal court because the manufacturer said the case should be tried under federal environmental laws.

Connell filed documents last week that would move the case back to state court, if a judge approves.

AVX illegally dumped TCE into groundwater and the city's sewer system from at least 1981 to 1995, according to DHEC documents. A DHEC spokeswoman said Tuesday the contamination might date back as far as the 1960s.

High levels of TCE contaminated groundwater at AVX, and that contamination has migrated to groundwater in a 10-block neighborhood northeast of the manufacturer's headquarters.

Connell claims contamination from AVX has ruined property values for residents living near the manufacturer's headquarters. He wants AVX to pay those residents the amount their property would be worth if the contamination did not exist.

Horry Land Co. has filed a similar lawsuit, and wants AVX to pay $5.4 million for its property.

A third lawsuit was filed last week against AVX on behalf of property owners along Beaver Road.